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The aftermath of Blood Tribe - do privacy commissioners and administrative tribunals have authority to compel production of records over which a claim of solicitor-client privilege has been made?

Our previous article in the CBA Privacy Pages, “Supreme Court of Canada Decision in the Blood Tribe Case and Solicitor-Client Privilege”, discussed the Supreme Court of Canada decision Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, 2008 SCC 44, which found that the federal Privacy Commissioner did not have the authority under the Personal Information Protection and Electronic Documents Act (“PIPEDA”) to issue an order requiring a party to disclose to her copies of records over which a claim of solicitor-client privilege had been made.

The Court found that the Privacy Commissioner does not “occupy the same position of independence and authority of the Court” for the purposes of reviewing matters of solicitor-client privilege. Moreover, the Court found that express legislative words are required to permit a regulator or other statutory officer to “pierce” solicitor-client privilege - the privilege cannot be abrogated by inference.

Part of the Court’s reasoning was that a court’s power to review privileged documents in order to determine a disputed claim for privilege does not flow from its power to compel production; rather, it flows from the court’s power to adjudicate disputed claims over legal rights. The federal Privacy Commissioner has no such power, given the Office’s “ombudsman” role.

We noted in our previous article that the Alberta and British Columbia private sector privacy legislation, known in both provinces as the Personal Information Protection Act (“PIPA”), provides that the Privacy Commissioner for each jurisdiction may require production of any document. These powers to compel production of documents, in combination with other provisions in the enactments, have, to date, been interpreted by the British Columbia and Alberta Commissioners as empowering them to compel production of records subject to solicitor-client privilege in circumstances where less “intrusive” approaches to determine the validity of the claim of privilege have not been fruitful.2

Neither the British Columbia nor the Alberta PIPA contain express legislative words that permit the provincial Privacy Commissioners to “pierce” solicitor-client privilege. However, unlike PIPEDA, these statutes do confer general order-making power on the Commissioners as opposed to an “ombudsman” role. Accordingly, it has not been clear how the Supreme Court of Canada decision in Blood Tribe will affect the interpretation of the Commissioner’s powers in Alberta and British Columbia regarding production. At the time of writing, there appear to be no decisions of either the Alberta or British Columbia Commissioner on this point nor are there any Court decisions in those jurisdictions addressing this issue.

It is possible that the British Columbia and Alberta PIPA provisions would be interpreted such that disclosure of privileged documents to those Commissioners would not constitute a waiver of privilege, but that an organization could nonetheless validly decline to produce such documents and the matter would ultimately fall to be determined by the courts.

The Blood Tribe decision, of course, has implications beyond the Privacy Commissioner context. If the federal Privacy Commissioner does not have authority to compel production of records over which a claim of solicitor-client privilege has been made, the same may be said of other administrative tribunals or regulators.

However, the decisions of administrative tribunals subsequent to the Blood Tribe case suggest that there are few, if any, tribunals that believe their authority to compel such records has been curtailed by Blood Tribe.3

For example, in Carpenters and Allied Workers United Brotherhood of Carpenters and Joiners of America, Local 27 v. Proplus Construction and Renovation Inc. 2008 CanLii 65158 (Ontario Labour Relations Board), the Ontario Labour Relations Board found that the Board had the ultimate power to review documents if necessary in order to determine whether a claim for solicitor-client privilege over the documents was valid. The Board found that its authority under Section 110(16) of the Labour Relations Act, 1995, which provides that the Board will determine its own practice and procedure, allowed it to require production of records.

The Board found the Blood Tribe decision was distinguishable because the Board is a quasi-judicial statutory tribunal responsible for determining all questions of fact or law that arise in any hearing before it (pursuant to Section 114(1) of the Labour Relations Act, 1995). From the Board’s perspective it followed that that Board was responsible for verifying claims of privilege to ensure the integrity and proper functioning of its processes. In other words, the Board took the view that, unlike the federal Privacy Commissioner, it was an adjudicator.4

The Supreme Court of Canada in Blood Tribe indicated that two factors should be considered in determining whether the tribunal or commissioner in question was sufficiently analogous to a court to have the requisite authority to compel production of records covered by a claim of privilege. First, the express statutory authority of the tribunal or commissioner must be considered; secondly, the independence of the tribunal or commissioner must be examined.

The Supreme Court of Canada noted that the federal Privacy Commissioner may become adverse in interest to a party whose documents the Commissioner wants to access - this was not true of a court. The Court noted that not only can the federal Privacy Commissioner take a resisting organization to Federal Court but she can also disclose to the Attorney General information relating to the commission of an offence by an officer or employee of an organization. These factors indicated that the federal Privacy Commissioner was not sufficiently “court-like” to be able to exercise the authority to review records over which a claim of solicitor-client privilege has been made.5

In Proplus Construction and Renovation Inc. the Ontario Labour Relations Board did not address the issue of its independence and whether it was sufficiently “court-like”. The Board also ignored in its reasoning the absence of clear unequivocal statutory language regarding the power to compel documents over which solicitor-client privilege has been claimed (relying only on a more general statutory power). It is therefore unclear whether this ruling of the Ontario Labour Relations Board would have been upheld had it been challenged before the courts.

Similarly, in Quadrini v. Canada Revenue Agency and Hillier, 2009 PSLRB 104 (Public Service Labour Relations Board)6, the PSLRB found that it had the authority to require production of a document to it in order for the Board to satisfy itself that the document was indeed subject to solicitor-client privilege. The Board noted that there was no express statutory provision stating that it had the authority to decide all questions of fact or law but found that its authority arose from a more general provision (Section 36 of the Public Service Labour Relations Act) which stated that the Board may exercise the powers and perform the functions that are conferred or imposed on it by the Act. The Board also referred to Section 40 of the Act which set out a general power to compel a person to produce documents.

The PSLRB found that the Blood Tribe decision was distinguishable and that, unlike the federal Privacy Commissioner, the Board is a quasi-judicial tribunal with broad adjudicative responsibilities. Unlike the federal Commissioner, the Board would not at any time become adverse in interest to the parties that came before it. The Board found that the absence of a statutory provision explicitly authorizing the PSLRB to enquire into the validity of a claim of solicitor-client privilege was not determinative.

In Northwest Territories (Industry Tourism and Investment) 2008 CanLii 77538 (Northwest Territories Information and Privacy Commissioner), the Northwest Territories Commissioner found that her authority under the Northwest Territories Access to Information and Protection of Privacy Act (“ATIPP”) to compel production of records for her review (notwithstanding a claim of solicitor-client privilege) was much more clear than the provision of PIPEDA considered in the Blood Tribe case.7

The relevant Northwest Territories ATIPP provision (Section 34) states that the Commissioner may require the production of any record “notwithstanding any other act or any privilege available at law”. In our view, this language is more clear than any other statutory language which has been considered to date in the post Blood Tribe milieu. However, it does not expressly refer to “solicitor-client privilege”. Based on this language, the Northwest Territories Commissioner found that it was inappropriate for a public body to demand an undertaking from the Commissioner to keep the records in question confidential and to return them to the public body upon completion of the review (as had been done in this case).

In Law Society of Saskatchewan v. Merchant 2008 S.K. Ca. 128 (leave to appeal denied [2008] S.C.C.A. No. 538), the Saskatchewan Court of Appeal found that the Law Society of Saskatchewan has the authority to demand the production of privileged records in the course of investigating a complaint against a member, notwithstanding the Supreme Court of Canada decision in Blood Tribe. The Court relied on Section 63 of the Legal Profession Act which required every member to comply with the demand to produce “any of the member’s records or other property”. The Court found that in the unique context of a statute dealing with the regulation of the legal profession, the words “any of the member’s records” must be taken as referring to documents subject to solicitor-client privilege. The Court noted further that the Act placed a positive obligation on the Law Society to investigate complaints and that the requested records were required in order to carry out the investigation – accordingly, the interference with the solicitor-client privilege was only to the extent “absolutely necessary” (as is required by the Supreme Court of Canada decision in Blood Tribe).

In Walden v. Social Development Canada 2008 C.H.R.T. 35, aff’d 2010 FC 490, the Canadian Human Rights Tribunal held that it was entitled to review documents from the file of an expert witness who would be called upon to testify before the Tribunal in order to determine whether the documents were subject to litigation privilege or whether the litigation privilege had been waived by the decision to call the expert as a witness. The Tribunal briefly considered the Supreme Court of Canada decision in Blood Tribe and found that it did not apply because the records in question were not said to be covered by solicitor-client privilege, but rather by litigation privilege which involves different policy considerations.

In contrast, the Federal Court has clearly applied the Blood Tribe decision to documents covered by litigation privilege. In Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 the Court found that the federal Privacy Commissioner was not entitled to require Air Canada to provide her with affidavit evidence in support of its claim of privilege and this applied both to claims of solicitor-client privilege and litigation privilege.

In State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada, 2010 FC 736, the Court commented that the Air Canada decision held that the federal Privacy Commissioner “had no authority under PIPEDA to require an organization to justify its assertion of privilege” (at para. 115).

Worobec v. University of British Columbia 2010 B.C.H.R.T. 20 is a decision of the BC Human Rights Tribunal which acknowledges that it is unclear whether the decision in Blood Tribe is directly applicable to the BCHRT. The issue in Worobec arose because the complainant applied for an order that a third party (his bargaining agent – The Association of Administrative and Professional Staff) disclose relevant documents to him. The Association claimed solicitor-client privilege over some of the documents. The BCHRT attempted to avoid deciding the issue raised by Blood Tribe by ordering that non-privileged relevant documents be disclosed by the Association and that the Association provide a list of documents over which it claimed privilege with sufficient particularity to enable the Complainant to decide whether to challenge the claim of privilege and to seek a further order from the BCHRT.

The BCHRT in Worobec found an elegant way to deal with Blood Tribe, but it should be noted that if much particularity were given in the list of documents, this could still infringe on solicitor-client privilege (for example, even the date and subject matter of a communication between lawyer and client can sometimes reveal a significant amount).

The Tribunal in Worobec, in our view, comes closest to following the substance of the Supreme Court of Canada’s decision in Blood Tribe, but somewhat sidesteps the issue by fashioning a practical result.

What does this mean for the legal practitioner? Perhaps the decisions of the Federal Court in Air Canada and State Farm will bring about more caution on the part of tribunals and commissioners, but this cannot be assumed.

We will need to assist our clients to make an informed choice about whether to resist a tribunal’s (or commissioner’s) request for disclosure to it of documents over which solicitor-client privilege has been claimed. This will involve the weighing of numerous factors. For example, how “court-like” is the tribunal or commissioner in question? Even if there is a good argument that Blood Tribe applies and that the tribunal or commissioner in question cannot compel those documents, it appears there is nonetheless a reasonable likelihood the tribunal or commissioner will take the view that they can require disclosure of those documents and this will mean that the client would have to be willing to take the matter to court for a resolution of the issue (consider how far the Blood Tribe had to take its case!).

If it is not important enough to a client to take the matter to court, the better approach might be to suggest to the tribunal or commissioner other ways of evaluating the solicitor-client privilege claim, short of producing the documents (i.e. by providing a description of the type of privilege claimed, the general nature of the documents in question, or, where the situation warrants, offering to provide an affidavit from the client, etc.).

The issue will also, of course, have to be considered in light of the overall strength of the client’s case (and the client’s pocketbook!), and whether it is worthwhile to press the privilege issue in all of the circumstances. If the client decides to produce the documents this should be done with an express statement that the privilege has not been waived by the client by virtue of production and perhaps with a statement that this is being done “under protest”.

In any event, it will be very interesting to see whether the protocols developed by the B.C. and Alberta OIPCs lead to a future court challenge, and how the Air Canada and State Farm decisions are dealt with by tribunals and commissioners.

To view all formatting for this article (eg, tables, footnotes), please access the original here.